AN ACT to amend and reenact §11-16-3 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §11-16-11a; to amend said code by adding
thereto a new section, designated §60-3A-3a; and to amend and
reenact §60-3A-4 of said code, all relating to allowing Class
A retail licensees the ability to conduct responsible
nonintoxicating beer and liquor sampling events; requiring
preapproval of the events by the ABCA commissioner;
establishing standards, limitations, and prohibitions to be
applied for the conduct of such events; definitions;
incorporating civil penalties for violations by reference;
criminal penalties for violations by reference; providing for
emergency rules; and defining terms.

Be it enacted by the Legislature of West Virginia:

That §11-16-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §11-16-11a; that said code be
amended by adding thereto a new section, designated §60-3A-3a; and
that §60-3A-4 of said code be amended and reenacted, all to read as
follows:

CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.

§11-16-3. Definitions.
For the purpose of this article, except where the context clearly
requires differently:

(1) "Brewer" or "manufacturer" means any person, firm,
association, partnership or corporation manufacturing, brewing,
mixing, concocting, blending, bottling or otherwise producing or
importing or transshipping from a foreign country nonintoxicating
beer for sale at wholesale to any licensed distributor.

(2) "Brewpub" means a place of manufacture of nonintoxicating
beer owned by a resident brewer, subject to federal regulations and
guidelines, a portion of which premises are designated for retail
sales.

(3) “Class A retail license” means a retail license
permitting the retail sale of liquor at a freestanding liquor
retail outlet licensed pursuant to chapter sixty of this code.

(4) "Commissioner" means the West Virginia Alcohol Beverage
Control Commissioner.

(5) "Distributor" means and includes any person jobbing or
distributing nonintoxicating beer to retailers at wholesale and
whose warehouse and chief place of business shall be within this
state.

(7) "Nonintoxicating beer" means all cereal malt beverages or
products of the brewing industry commonly referred to as beer,
lager beer, ale and all other mixtures and preparations produced by
the brewing industry, including malt coolers and nonintoxicating
craft beers containing at least one half of one percent alcohol by
volume, but not more than nine and six-tenths of alcohol by weight,
or twelve percent by volume, whichever is greater, all of which are
hereby declared to be nonintoxicating and the word "liquor" as used
in chapter sixty of this code shall not be construed to include or
embrace nonintoxicating beer nor any of the beverages, products,
mixtures or preparations included within this definition.

(8) “Nonintoxicating beer sampling event” means an event
approved by the commissioner for a Class A retail Licensee to hold
a nonintoxicating beer sampling authorized pursuant to section
eleven-a of this article.

(9) “Nonintoxicating beer sampling day” means any days and
hours of the week where Class A retail licensees may sell
nonintoxicating beer pursuant to sub-section (a)(1), section
eighteen of this article, and is approved, in writing, by the
commissioner to conduct a nonintoxicating beer sampling event.

(10) "Nonintoxicating craft beer" means any beverage obtained
by the fermentation of barley, malt, hops or any other similar
product or substitute and containing not less than one half of one
percent by volume and not more than twelve percent alcohol by
volume or nine and six-tenths percent alcohol by weight.

(11) "Original container" means the container used by the
brewer at the place of manufacturing, bottling or otherwise
producing nonintoxicating beer for sale at wholesale.

(13) "Resident brewer" means any person, firm, association,
partnership, or corporation whose principal place of business is
within the state.

(14) "Retailer" means any person selling, serving, or
otherwise dispensing nonintoxicating beer and all products
regulated by this article, including, but not limited to, any malt
cooler, at his or her established and licensed place of business.

(15) "Tax Commissioner" means the Tax Commissioner of the
State of West Virginia or the commissioner's designee.

§11-16-11a. Nonintoxicating beer sampling.

(a) Notwithstanding any provision of this code to the
contrary, a Class A retail licensee may, with the written approval
of the commissioner, conduct a nonintoxicating beer sampling event
on a designated nonintoxicating beer sampling day.

(b) At least five business days prior to the nonintoxicating
beer sampling, the Class A retail licensee shall submit a written
proposal to the commissioner requesting to hold a nonintoxicating
beer sampling event, including:

(1) The day of the event;

(2) the location of the event;

(3) The times for the event;

(4) The names of up to three specific brands, types and
flavors, if any, of the nonintoxicating beer to be sampled; and

(5) A statement indicating that all the nonintoxicating beer
brands have been registered and approved for sale in the state by
the commissioner.

(c) Upon approval by the commissioner, a Class A retail
licensee may serve the complimentary nonintoxicating beer samples
of the approved brands, types and flavors that are purchased by the
Class A retail licensee, with all taxes paid, from its inventory.

(d) The complimentary nonintoxicating beer sample on any
nonintoxicating beer sampling day shall not exceed:

(1) One separate and individual sample servings per brand,
type and flavor per customer verified to be twenty-one years of age
or older; and

(2) Two ounces in total volume per brand, type and flavor.

(e) Servers at the nonintoxicating beer sampling event shall:

(1) Be employees of the Class A retail licensee;

(2) Be at least twenty-one years of age or older; and

(3) Have specific knowledge of the nonintoxicating beer being
sampled to convey to the customer.

(f) All servers at the nonintoxicating beer sampling event
shall verify the age of the customer sampling nonintoxicating beer
by requiring and reviewing proper forms of identification. Servers
at the nonintoxicating beer event may not serve any person who is:

(1) Under the age of twenty-one years; or

(2) Intoxicated.

(g) A nonintoxicating beer sampling event shall:

(1) Occur only inside the Class A retail licensee’s licensed
premises; and

(2) Cease on or before 9:00 p.m. on any approved
nonintoxicating beer sampling day.

(h) Any nonintoxicating beer bottle or can used for sampling
must be from the inventory of the licensee, and clearly and
conspicuously labeled “SAMPLE, NOT FOR RESALE”. If the seal is
broken on any nonintoxicating beer bottle or can, or if any
nonintoxicating beer bottle or can is opened, then that
nonintoxicating beer bottle or can must be removed from the
licensed premises immediately following the event.

(i) Violations of this section are subject to the civil and
criminal penalties set forth in sections eighteen, nineteen,
twenty, twenty-two, twenty-three, twenty-four and twenty-five of
this article;

(j) To implement the provisions of this section, the
commissioner may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code or propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this code.

CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS

ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.

§60-3A-3a. Liquor sampling.

(a) Notwithstanding any provision of this code to the
contrary, a Class A retail licensee may, with the written approval
of the commissioner, conduct a liquor sampling event on a
designated sampling day.

(b) At least five business days prior to the liquor sampling,
the Class A retail licensee shall submit a written proposal to the
commissioner requesting to hold a liquor sampling event, including:

(1) The day of the event;

(2) the location of the event;

(3) The times for the event; and

(4) The specific brand and flavor of the West Virginia product
to be sampled.

(c) Upon approval by the commissioner, a Class A retail
licensee may serve a complimentary liquor sample of the approved
brand and flavor of the West Virginia product that is purchased by

the Class A retail licensee from the commissioner.

(d) The complimentary liquor samples on any sampling day shall
not exceed:

(1) One separate and individual sample serving per customer
verified to be twenty-one years of age or older; and

(2) One ounce in total volume.

(e) Servers at the liquor sampling event shall:

(1) Be employees of the Class A retail licensee;

(2) Be at least twenty-one years of age or older; and

(3) Have specific knowledge of the West Virginia product being
sampled to convey to the customer.

(f) All servers at the liquor sampling event shall verify the
age of the customer sampling liquor by requiring and reviewing
proper forms of identification. Servers at the liquor sampling

event may not serve any person who is:

(1) Under the age of twenty-one years;

(2) Intoxicated.

(g) A liquor sampling event shall:

(1) Occur only inside the Class A retail licensee’s licensed
premises; and

(2) Cease on or before 9:00 p.m. on any approved sampling day.

(h) Any liquor bottle used for sampling must be from the
inventory of the licensee, and clearly and conspicuously labeled
“SAMPLE, NOT FOR RESALE”. If the seal is broken on any liquor
bottle or if any liquor bottle is opened, then that liquor bottle
must be removed from the licensed premises immediately following
the event.

(i) Violations of this section are subject to the civil and
criminal penalties set forth in sections twenty-four, twenty-five-a, twenty-six and twenty-seven of this article;

(j) To implement the provisions of this section, the
commissioner may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code or propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this code.

§60-3A-4. Definitions.

(a) “Active retail license” means a current license for a
retail outlet that has been open and in continuous operation for a
period of not less than twelve months prior to July 1, 2010, or
July 1 every ten years thereafter.

(b) “Active retail licensee” means a person who holds an
active retail license at the time of the effective date of the
amendments to this section during the first extraordinary session
of the Legislature in 2009 or that person’s successor or any person
who holds an active retail license when it expires at the end of a
ten-year period.

(c) “Applicant” means any person who elects to pay a purchase
option for a Class A retail license, who bids for a retail license
or who seeks the commissioner’s approval to purchase or otherwise
acquire a retail license from a retail licensee, in accordance with
the provisions of this article.

(d) “Application” means the form prescribed by the
commissioner which must be filed with the commissioner by any
person bidding for a retail license.

(e) “Board” means the Retail Liquor Licensing Board created by
this article.

(h) “Current retail licensee” means a person who holds a
retail license at the time of the effective date of the amendments
to this section during the first extraordinary session of the
Legislature in 2009 or that person’s successor or any person who
holds a retail license when it expires at the end of a ten-year
period.

(i) “Designated areas” means one or more geographic areas
within a market zone designated as such by the board.

(j) “Executive officer” means the president or other principal
officer, partner or member of an applicant or retail licensee, any
vice president or other principal officer, partner or member of an
applicant or retail licensee in charge of a principal business unit
or division, or any other officer, partner or member of an
applicant or retail licensee who performs a policy-making function.

(l) “Liquor” means alcoholic liquor as defined in section
five, article one of this chapter and also includes both wine and
fortified wines as those terms are defined in section two, article
eight of this chapter.

(m) "Liquor sampling event" means an event approved by the
commissioner, for a Class A retail licensee to hold a liquor
sampling authorized pursuant to section three-a of this article.

(n) “Market zone” means a geographic area designated as such
by the board for the purpose of issuing retail licenses.

(o) “Mixed retail liquor outlet” means a retail outlet that
sells liquor, beer, nonintoxicating beer and other alcohol-related
products, including tobacco-related products, in addition to
convenience and other retail products.

(q) “Retail license” means a license issued under the
provisions of this article permitting the sale of liquor at retail.

(r) “Retail licensee” means the holder of a retail license.

(s) “Retail outlet” means a specific location where liquor may
be lawfully sold by a retail licensee under the provisions of this
article.

(t) “Sampling day” means any days and hours of the week where
retail licensees may sell liquor pursuant to section eighteen,
article three-a, chapter sixty of this code for a Class A retail
licensee to conduct a liquor sampling event.

(u) “West Virginia product” means all liquor types and classes
as approved by the commissioner and maintained on the ABCA retail
liquor product list.